Further Down the Slippery Slope: The EU’s Tobacco Package Property Seizure

On Wednesday, the European Union’s Health Commission announced revisions to its Tobacco Products Directive. If approved by EU member states and the European Parliament, the Directive would, among other things, seize 75% of the tobacco package for graphic warnings and permit states to seize the entire label through plain packaging.

The Health Commission and public health activists are no doubt busy congratulating themselves and each other. But such policies offer a hollow promise of tobacco use reduction, tread on international laws and treaties, and set the EU on a slippery slope towards further restrictions on consumer information.

Such massive graphic warnings and plain packaging are governments’ “ideas of the moment” for reducing tobacco consumption. A U.S. Food and Drug Administration proposal forces tobacco makers to communicate the government’s disdain for smoking with gory images on 50% of the package. As we’ve noted here previously, two federal circuit courts have issued differing opinions on the constitutionality of this proposal, and the issue is likely headed to the U.S. Supreme Court. Also, at the beginning of this month, Australia’s plain packaging requirement went into effect after the country’s highest court upheld its legality. A just-published WLF Legal Backgrounder details the ruling and views it as merely an opening salvo in a larger legal battle.

Little or no evidence exists that supports the effectiveness of fear-based warnings for a product that carries widely-known risks. As WLF’s 2010 comments to the EU Health Commission on the Tobacco Directive state, “Reminding consumers of information they already know does not serve any educational purpose.” In fact, as the authors of a 2012 WLF Working Paper, “Health Warnings on Consumer Products: Why Scarier Is Not Better” wrote:

Graphic health warnings (GHW) threaten serious costs in terms of smoker concentration on fear (as opposed to danger avoidance), defensive processing, and reactance, as well as feelings of low self-esteem and self-efficacy. Finally, GHW has been shown to make tobacco products appear more attractive to certain individuals.”

Plain packaging, which EU member states can impose on tobacco “if justified on public health grounds”, eschews warnings for a simpler, more extreme “let’s make the product boring” approach. Such a seizure of tobacco trademarks worth billions of dollars is highly suspect under international trade treaties. A 2011 WLF Monograph elaborates on this point. Plain packaging will also exacerbate an already serious counterfeiting problem in parts of the EU. If unregulated, counterfeit cigarette packages are essentially indistinguishable from regulated products, consumers are at greater risk of purchasing dangerous products. And more counterfeit sales means less tax revenue for the states.

From a broader, philosophical perspective, the EU’s proposed Directive is the is the proverbial “camel’s nose under the tent” that could lead to wider application of graphic warnings and package seizures. Public health activists make no bones about their desire to impose such policies on other “disfavored” products. We’ve noted before here that the United Kingdom government is exploring the idea of plain packaging for alcohol. Are “junk food”, soda, red meat, and prescription drugs, all of which activists find harmful or excessively expensive, next on the list?